The reasonableness standard bill, which was sent to the Knesset plenum for its first reading on Tuesday, is part of a long debate on reasonableness and judicial reform.
Since the reform was proposed at the beginning of the year, there have been a number of other proposals on how reasonableness should or shouldn’t be restricted.
The reasonableness standard is a common law doctrine that allows for judicial review against government administrative decisions that are deemed beyond the scope of what a responsible and reasonable authority would undertake.
Critics of the reasonableness standard bill
Critics of the law argue that it is a highly subjective tool for judicial activism that allows the court to subvert government policy with its own views. Proponents argue that the tool is one of the few in the Israeli court’s toolbox, and is essential to counter corruption and to ensure the protection of individuals from arbitrary and capricious government decisions.
At the outset, Justice Minister Yariv Levin called for the complete cancellation of reasonableness; that he did not recognize it.
When Knesset Constitution, Law, and Justice Committee chairman Simcha Rothman on January 18 said that its application would be restricted from decision by elected officials, this was seen as a softened version of it.
This remains the basis of Rothman’s private bill that was approved by the committee on Tuesday: No court, high or lower, can use reasonableness in judgments or in the acceptance of appeals pertaining to the administrative decisions of elected officials.
The extent of what is an elected official in the amendment to Basic Law: Judiciary has yet to have been clarified, with the current draft saying that it would be defined by law. Rothman has also pondered the ideas of giving the power of reasonableness standard to the Knesset as a democratic means of accountability, but this hasn’t been implemented in the text.
Rothman has argued that there is legitimacy in advancing the law, not just because in the past opposition politicians have favored restricting reasonableness, but also because there was agreement on the subject during negotiations at the President’s Residence.
Opposition members and negotiators have denied that there was consensus on the matter, but there were leaks before negotiations imploded in mid-June.
Media had reported that the opposition and coalition had agreed on restricting reasonableness on full government decisions, but would allow for its applicability to individual ministers and state bodies.
This would have included judicial review of ministerial appointments, a hot-button issue following a High Court of Justice ruling early in the year ordering the removal of Shas chairman Arye Deri from his posts as interior and health ministers. The court, among other reasons, said it was unreasonable that a person with a long criminal history would be in a position of public trust.
Before talks began, President Isaac Herzog released his own judicial reform proposals, which he called “The People’s Outline.” As part of his attempt to compromise between those in favor of reform and those against, Herzog proposed a reasonableness standard law that would not apply to government decisions of policy and ministerial appointments during plenary sessions. The standard would have still applied for other state and public authorities, which in practice would not be too dissimilar to the current bill.
Another proposal entertained by coalition politicians came from a group of drafters that included former justice minister Prof. Daniel Friedmann. The Friedmann outline proposed that the reasonableness standard continue to be used as normal, but not for appointments.
As the current version of restrictions on the reasonableness standard continues down the legislative process, it too will likely change into a new formula. As Rothman has often said about the reform bills, no legislation remains the same as it started going through committee and Knesset.